Social Networking: Ethics and Professionalism. Are you a tweeter or just a twit? Web The Social Web

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1 Social Networking: Ethics and Professionalism Are you a tweeter or just a twit? Web The Social Web 1

2 Most Common Examples of the Social Web Social Networks Social Networking Site Usage by Age Group, % of adults use social networking sites On a typical day 48% of adults use social networking 2

3 Most Common Examples of the Social Web Blogs There are 70 million acve WordPress blogs Micro Blogs Societal news streams Mobile Locaon Based Services (LBS) Wikis Video Why is Social Networking So Popular? Connect with people Collaborate share ideas Enhanced corporate and professional use 3

4 Turner P. Graham New in house counsel hire who reports to you Prolific blogger, texter and tweeter Anxious to impress Usually had a bad hangover during professional responsibility class Not admied in Illinois In- House Counsel Licensing Rule 716 of Illinois Rules Governing the Legal Profession and Judiciary in Illinois provides: A person who, as determined by the Board of Admissions to the Bar, has been licensed to pracce in the highest court of law in any United States state, territory, or the District of Columbia may receive a limited license to pracce law in this state when the lawyer is employed in Illinois as house counsel exclusively for a single corporaon, partnership, associaon or other legal enty... 4

5 In- House Counsel Licensing Rule 716 (g) Authority and Limitaons. A lawyer licensed and employed as provided by this Rule has the authority to act on behalf of his or her employer for all purposes as if licensed in Illinois. The lawyer may not act as counsel for the employer unl the applicaon is accepted and approved by the Court. A lawyer licensed under this rule shall not offer legal services or advice to the public or in any manner hold himself or herself out to be engaged or authorized to engage in the pracce of law, except such lawyer may provide voluntary pro bono public services as provided in Rule 756(j). In- House Counsel Licensing Gucci America, Inc. v. Guess?, Inc., No. 09 Civ (SAS) (JLC), 2010 WL (S.D.N.Y. June 29, 2010), rev d, 2011 WL 9375 (S.D.N.Y. January 2, 2011) To require businesses to connually check whether their in- house counsel have maintained acve membership in bar associaons before confiding in them simply does not make sense. While an aorney has an obligaon to ensure that he is properly praccing law- and faces the specter of disciplinary acon if he engages in unauthorized pracce- the sins of the aorney must not be visited on the client so long as the client has acted reasonably in its belief that its counsel is, in fact, an aorney. 5

6 Profile Friends Networks Inbox home account privacy logout Turner P. Graham just le Cook County courthouse w/ the Big Kahuna. Had a wreck is being sued along with the company. Great boss, but already has two DUIs. Now I got to try to get him and the company off. View More Photos of Me Edit My Profile My Friends (4) Today: Hey, Grahamie Whammie! Missed you! Call me. Turner P. Graham and Bud Wiser are now friends. Mike Sunshine Rule 1.6: Confidenality of Informaon A lawyer shall not reveal informaon relang to the representaon of a client UNLESS the client gives informed consent; the disclosure is impliedly authorized in order to carry out the representaon; or the disclosure is permied by paragraph (b) or required by paragraph (c) 6

7 Rule 1.13(g) Organizaon As Client (g) A lawyer represenng an organizaon may also represent any of its directors, officers, employees, members, shareholders or other constuents, subject to the provisions of Rule 1.7 Rule 1.7 addresses conflicts of current clients, including joint representaon and when a instuon is the client This is for real Krisne P., a lawyer in Illinois, lost her job as an assistant public defender aer 19 years of service over blog posngs, and now faces disciplinary proceedings as well. She wrote posts to her blog that thinly veiled the idenes of clients and confidenal details of a case, including statements like, This stupid kid is taking the rap for his drug- dealing dirt bag of an older brother because he s no snitch. [ A Legal Bale: Online Atude vs. Rules of the Bar, New York Times 9/13/09] 7

8 Krisne P. - The aermath Krisne P also received a 60- day suspension in May 2010 Profile Friends Networks Inbox home account privacy logout View More Photos of Me Edit My Profile My Friends (10) Turner P. Graham will B out. Got 2 aend trial in Hot Lanta. That slug of a plainff s lawyer wants $3M to sele but Save R Ins. has only offered $250K. I know we have more in authority, but we re not going to offer it unless the judge denies our d.v. moon. Besides, we have some real dirt on plainff s expert, complete with video from a low rent rendezvous. See ya! Today: Just posted our new wedding photos for your viewing pleasure. Turner P. Graham and Mark Ell are now friends. Mike Sunshine 8

9 Rule 3.6: Trial Publicity A lawyer who is parcipang or has parcipated in the invesgaon or ligaon of a maer shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communicaon and will have a substanal likelihood of materially prejudicing an adjudicave proceeding in the maer This is for real In 2009, a juror in a federal drug trial in Florida admied to the judge that he had been doing research on the case on the Internet, in direct violaon of the judge s instrucons. When the judge quesoned the rest of the jury, he found out that eight other jurors had been doing the same thing. The judge had no choice but to declare a mistrial, a waste of eight weeks of work by prosecutors and defense lawyers. [ As Jurors Turn to Web, Mistrials Are Popping Up, New York Times, March 18, 2009.] 9

10 And so is this In an Arkansas case, Juror Powell sent Twier messages during the trial: Oh and nobody buy [stock of the defendant company]. Its bad mojo and they ll probably cease to exist, now that their wallet is $12M lighter. Also: So Jonathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else s money. [ As Jurors Turn to Web, Mistrials Are Popping Up, New York Times, March 18, 2009.] Steve Marn tweeted death penalty jokes while doing jury duty [ How Social Media is Pushing the Limits of Legal Ethics, Tech News and Analysis, Feb. 26, 2011] OMG! Jdg picked me 2 decide doods f8! Looks gil- t frm here ;- ) [Id.] Profile Friends Networks Inbox home account privacy logout Turner P. Graham is OMG! Just found out that Sally Sue Wannamaker is going to be a witness against good ole Save R Ins. at trial. She is so HOT! Remember her from the frat. TOGA! She has the dirt on everybody, whether true or not. Hey, aren t you her Facebook friend? Check her out and see what she s gonna say? Let me know. View More Photos of Me Edit My Profile My Friends (35) Today: Hey, Turner. I called out sick today. Wanna join? Surfs up! Mike Sunshine Turner has just bought new furniture for his room in YoVille. 10

11 Rule 8.4: Misconduct It is professional misconduct for a lawyer to: (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentaon; (d) Engage in conduct that is prejudicial to the administraon of jusce This is for real A Michigan juror who posted on Facebook that a defendant was guilty before the compleon of trial was dismissed from the jury, held in contempt of court, ordered to pay a $250 fine and required to write a five page essay on the defendant's Sixth Amendment right to a jury trial. Chrisna Hall, Facebook Juror Gets Homework Assignment, The Detroit Free Press, Sept. 2, 2010 A state trial court in the Bronx determined that a woman breached her obligaons as a juror by sending a Facebook friend request to a government witness but rejected the defense's argument that this act had tainted the jury's guilty verdict. Noeleen G. Walter, Access to Internet, Social Media by Jurors Pose Challenges for Bench, N.Y. L.J., Mar. 3,

12 This too A New Hampshire juror charged with contempt of court for revealing during deliberaons that the defendant was a convicted child molester pleaded guilty to a reduced charge and agreed to pay $1,200 to reimburse the county for expenses related to two days of deliberaons Debra C. Weiss, Juror Whose Revelaon Forced a Mistrial Will Pay $1,200, A.B.A. J., Oct. 13, 2009 Permissible??? A Philadelphia lawyer deposed an 18 year old woman (the witness ). The witness is not a party to the ligaon, nor is she represented. Her tesmony is favorable to the party adverse to the aorney. During the course of the deposion, the witness revealed that she has Facebook and MySpace accounts. The aorney believes the witness pages on these sites may contain informaon that could be used to impeach the witness if she were to tesfy at trial. But access to these accounts can only be obtained by the witness permission. Aorney believes the witness will give permission to just about anyone who asks. The aorney proposes to ask a third person, whose name the witness will not recognize, to contact the witness and seek to friend her, to obtain access to the accounts. The third person would state his or her true name, but what not reveal that he or she is affiliated with the lawyer or the true purpose for which he or she is seeking access. 12

13 Philadelphia Bar Associaon Professional Guidance Communicaon The proposed conduct would violate Rule 8.4 because the planned communicaon by the third party with the witness is decepve. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness pages is doing so only because he or she is intent on obtaining informaon and sharing it with a lawyer for use in a lawsuit to impeach the tesmony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access The aorney has suggested that his proposed conduct is similar to the common and ethical pracce of videotaping the public conduct of a plainff in a personal injury case to show that he or she is capable of performing physical acts he claims his injury prevents. [Opinion (March 2009)] 13

14 Profile Friends Networks Inbox home account privacy logout View More Photos of Me Edit My Profile My Friends (68) Turner P. Graham can t believe how awesome my man I ken B. Badd was in court today. He ripped em a new one. Save R. Ins. outside counsel rule! They R way cooler than those sffs where I used to work. I think I am going to work for them. They win more cases too. If I do, why don t you get your ole man to bring his bizz 2 me? I m the best, my boss told me so himself aer I got the 3d DUI dismissed. I ll do a hell of a job, won t churn his files and win em all!. Been hanging with Badd so much that I am now a real expert in whatcha call this here products liability stuff. Today: Will do. Glad to hear you re such a pro now. Friend Request Judge Hank M. High Confirm? Not Now Mark Ell Jessica Rule 7.1: Communicaons Concerning A Lawyer s Services A lawyer shall not make false or misleading communicaons about the lawyer or lawyer s services Material misrepresentation of fact or law Unjustified expectation about results the lawyer can achieve Compare the lawyer s services with other lawyer s services Contains a testimonial 14

15 Rule 7.2: Adversing Subject to the requirements of Rules 7.1 and 7.3, a lawyer may adverse services through wrien, recorded or electronic communicaon, including public media Rule 7.2: Adversing A lawyer shall not give anything of value to a person for recommending the lawyer s services except that a lawyer may: (1) pay the reasonable costs of adversements or communicaons permied by this Rule; (2) pay the usual charges of a legal service plan or a not- for- profit lawyer referral service; (3) pay for a law pracce in accordance with Rule 1.17; and (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. 15

16 Rule 7.3: Direct Contact with Prospecve Clients A lawyer shall not, by in person, live telephone or real me electronic contact, solicit professional employment from a prospecve client when a significant move for the lawyer s doing so is the lawyer s pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relaonship with the lawyer Rule 7.4: Communicaon of Fields of Pracce COMMENTARY A lawyer may indicate that the lawyer concentrates in, focuses on, or that the practice is limited to particular fields of practice as long as the statements are not false or misleading in violation of Rule 7.1. However, the lawyer may not use the terms specialist, certified, board-certified, expert or any similar variation. The Supreme Court of Illinois does not recognize certificates or specialties in the practice of law, except that it recognizes that admission to patent practice before the Patent and Trademark Administrative Patent Bankruptcy Family Law Real Estate Torts/ Insurance Labor Military 16

17 Shameless Plug Rule 3.5 A lawyer shall not: (a) seek to influence a judge, juror, prospecve juror or other official by means prohibited by law; (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order; (d) engage in conduct intended to disrupt a tribunal In North Carolina a judge was issued a public reprimand for friending the aorney for the defendant in a child custody/child support case. During an evening recess, the judge commented on his Facebook page in response to a comment made by defense counsel on his Facebook page (see a paern here) about a comment made by the judge during an in chambers conference. Judge recused himself only aer moons for a new trial were filed. Part- me judge in Nevada lost his posion because he listed on his MySpace page as interests: breaking my foot off in a prosecutor s ass and improving my ability to break my foot off in prosecutor s ass 17

18 Rule 3.5 Connued In a federal corrupon trial of a former Pennsylvania state senator, a juror posted updates on the case on Twier and Facebook. The juror told his readers that a big announcement was coming Monday On Sunday March 15, 2009, the witness said he watching "The Family Guy," and other shows on the Fox network, when the local news began. It was at this me that he learned that his posngs on Facebook and Twier were receiving media scruny Posngs were available to be viewed by anyone in 600,000 member Philadelphia network He worked in a human resources posion at a law firm "This is it no looking back now! posted to Twier account before verdict announced QUERY: What if lawyer had been monitoring posngs? Is Rule 3.5 implicated? See U.S. v. Fumo, 2009 U.S. Dist. LEXIS (E.D. Pa. 2009) Profile Friends Networks Inbox home account privacy logout Turner P. Graham is chillin like a villain Today: Mike has answered quesons about Turner. Click here to view results. View More Photos of Me Edit My Profile My Friends (92) Comment: Dude, decided to stay in- house but been thinking about what you said at the bar about maybe buying a house for you and the lile lady. Been cross- training in real estate. Went to a closing and everything. Wouldn t worry too much about that funky tax lien thing. Chances are, the feds will never do anything about it. Go ahead and do the deal, y all need a beer pad than the couch in your ma- in- law s basement. Darwena Marsha 18

19 Rule 1.2: Scope of Representaon A client- aorney relaonship may arise in a variety of situaons even without an engagement agreement and even if the aorney fails to recognize the existence of the relaonship A client- aorney relaonship may arise from a discussion with a potenal client regarding a maer, even when there is no formal engagement agreement Profile Friends Networks Inbox home account privacy logout View More Photos of Me Edit My Profile My Friends (149) Turner P. Graham thinks the Big Kahuna is the coolest thing this side of a Corona He showed me some s he sent to his assistant. He said she had bodacious ta ta s (she does!) and knew a place where they could get some work done. Oh yeah. I would like to work with her! She would probably go but she is married. Any way, he says that is one of perks of being the boss, geng the pick of the women. Power is everything. Can t wait to be the GC. Today: DUDE!!!! When you going to introduce me? Stacy Carmen 19

20 Textual Harassment E- mail, voice mail, Social Networking Sites serve as potenal tools for a harasser New mediums of communicaon become plaorms for employee harassment Texts allow employees to be discreet No concern with an , text or SNS message that a supervisor will overhear Low risk of confrontaon aer sending message Textual Harassment: Risks Texts, s, chats, are easily discoverable, making them excellent plainff s evidence When an employer enables a web 2.0 applicaon, courts may treat that applicaon as a part of the workplace. This means employers duty to prevent harassment could extend to digital mediums 20

21 Textual Harassment in the News Former Waitress Sues Hooters where a manager allegedly sent a waitress sexually charged texts asking her to date him. Aer she refused to go on a date, the manager cut the plainff s work schedule CMU to pay $450,000 to avoid sexual lawsuit where plainff student soccer players alleged their college soccer coach at Central Michigan University sent them sexually explicit texts Chevron paid $2.2 million to sele sexual harassment charges based on an e- mail about 25 reasons why beer is beer than Women Rule 1.13(b) Organizaon As Client (b) If a lawyer for an organizaon knows that an officer, employee or other person associated with the organizaon is engaged in acon, intends to act or refuses to act in a maer related to the representaon that is a violaon of a legal obligaon to the organizaon, or a violaon of law which reasonably might be imputed to the organizaon, and that is likely to result in substanal injury to the organizaon, then the lawyer shall proceed as is reasonably necessary in the best interest of the organizaon 21

22 What Should Turner P. Graham Do? Unless the lawyer reasonably believes that it is not necessary in the best interest of the organizaon to do so, the lawyer shall refer the maer to higher authority in the organizaon, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organizaon as determined by applicable law. Rule 1.7 addresses conflicts of current clients, including joint representaon and when a instuon is the client Did Big Kahuna violate the Rules of Professional Conduct? 22

23 Rule 8.4 Misconduct It is professional misconduct for a lawyer to: (a) violate or aempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentaon; (d) engage in conduct that is prejudicial to the administraon of jusce; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violaon of applicable rules of judicial conduct or other law Rule 8.4 Comments Many kinds of illegal conduct reflect adversely on fitness to pracce law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implicaon. Tradionally, the disncon was drawn in terms of offenses involving moral turpitude. That concept can be construed to include offenses concerning some maers of personal morality, such as adultery and comparable offenses, that have no specific connecon to fitness for the pracce of law. Although a lawyer is personally answerable to the enre criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteriscs relevant to law pracce. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administraon of jusce are in that category. A paern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligaon. 23

24 Profile Friends Networks Inbox home account privacy logout View More Photos of Me Edit My Profile My Friends (454) Turner P. Graham is a party animal. Smoking wayyy too much weed but nobody knows because Save R. Ins. doesn t drug test. Good thing too because being stoned is the only way I can make it through the day. Had to borrow some money to keep me in the green unl pay day. Big Kahuna is clueless. SSSSSHHHH! Today: Didn t you have to drop out of law school for a semester to detox? Elvis Frank Rule 5.1: Responsibilies of Partners, Managers, and Supervisory Lawyers A partner in a law firm, and a lawyer who individually or together with other lawyers possess comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm confirm to the Rules of Professional Conduct. 24

25 Does Rule 5.1 Apply to In- house Counsel? Rule 1.0(c) Firm or law firm denotes a lawyer or lawyers in a law partnership, professional corporaon, sole proprietorship or other associaon authorized to pracce law; or lawyers employed in a legal services organizaon or the legal department of a corporaon or other organizaon Comment to Rule 1.0(d) With respect to the law department of an organizaon there is ordinarily no queson that the members of the department constute a firm within the meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to the identy of the client. For example, it may not be clear whether the law department of a corporaon represents a subsidiary or an affiliated corporaon, as well as the corporaon by which the members of the department are directly employed. 25

26 In the Maer of an Anonymous Member of the South Carolina Bar, 346 S.C. 177, 552 S.E.2d 10 (2001) If an aorney fails to sasfy the supervisory requirements of Rule 5.1 by acons or omissions, that aorney violates the Rules of Professional Conduct and can be sanconed completely separate from any sancon issued for the underlying acons or omissions of the supervised aorney. A senior aorney in a large firm has an even greater responsibility than an aorney in a smaller pracce to enact formal office procedures to ensure compliance with the Rules of Professional Conduct. The rule prevents those aorneys who have the most influence over the atmosphere of the firm from turning a blind eye to the behavior of the firm s aorneys. In Re Phillips, 226 Ariz. 1112, 244 P.3d 549 (2010) The rules imposing managerial and supervisory obligaons, however, do not provide for vicarious liability for a subordinate's acts; rather, they mandate an independent duty of supervision. Although aorney partners and supervisors are not guarantors of their employees' conduct, they must take reasonable steps to ensure that firm pracces, not merely policies, actually comply with ethical rules binding all lawyers praccing law in this state. 26

27 Why You Should Use Social Media Enhance your public reputaon Build your personal brand Reach new clients Prepare case materials General Guidelines Remember: Content never disappears enrely once its been posted Don t post anything you wouldn t want your mother, children, spouse, pastor or potenal employer to see Never disclose proprietary or confidenal informaon Credit appropriately Idenfy copyrighted or borrowed material with citaons and links Give credit to the original source or author Never post false or misleading credenals Maintain complete accuracy in bios - no embellishment Jaffe Associates, Inc. Social Media and Social Networking Policies and Procedures. 27

28 Firm Guidelines Respect the privacy of your partners and the opinions of others What you personally post should never be aributed to your firm Shouldn't appear to be endorsed by or originated from the firm Don t use the words expert, specialized, cerfied or authority, unless you do have specialty credenals through the bar Don t post any informaon that could harm someone s career or business Avoid personal aacks, online fights, and hosle communicaons Don t post profane, obscene or abusive language or content Jaffe Associates, Inc. Social Media and Social Networking Policies and Procedures. Beware! Malware aacks, spam and hackers oh my! Privacy Check your sengs Use available privacy tools e.g. MyPrivacyAudit, Privacy Check, Privacy Defender, uprotect.it, Reputaon Alerts Privacy is dead, and social medias hold the smoking gun. Pete Cashmore, CEO of Mashable 28

29 This is for real Lawyer as Private Invesgator RULE 4.1 Truthfulness in statements to others RULE 4.3 Dealing with unrepresented pares RULE Misconduct 29

30 Lawyer as Adverser RULE 7.1 Communicaons Concerning a Lawyer s Services RULE Adversing RULE 7.3 Direct contact with prospecve clients RULE 7.4 Communicaon of fields of pracce RULE 1.6 Confidenality of Informaon Lawyer as Advisor Rule 4.2 Communicaons with Person represented by Counsel Rule 4.3 Dealing with Unrepresented Persons Rule 1.7 Conflicts of Interest Rule 1.18 Dues to Prospecve Clients 30

31 Quesons? If you have any, don t ask us. 31